2013Violation of Inventory 3 Presidential Emergency Decree No. 9

A

Defendant B

Kim Jong-Gyeong (Trial)

Law Firm C, Attorney D

Gwangju District Court Decision 79Gohap49 delivered on September 3, 1979

October 17, 2013

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant is the Vice-Chairperson and the Central Standing Committee Member per E, both of whom shall be the Vice-Chairperson and the Central Standing Committee Member

A. On March 10, 1979, from 13:30 to 16:00 on March 10, 1979, Gngue 106 room of Gngue 106 located in Net City F, which received one copy of the de facto declaration and one copy of the Japanese Cho Mangy newspaper that reported the contents of the declaration, such as denying the Constitution of the Republic of Korea from H, and slandering the Presidential Emergency Decree No. 9, and possessed from that time to March 27, 1979;

B. Around March 18, 1979, at the office of the defendant I located in Macheon-si, at the office of the defendant on January 30, 1979, "the release of all conscience offenders" on January 30, 1979, "the opposition to illegal conscription" on March 9, 1979, "the name of K organization" on March 16, 1979, "the name of K organization" on March 16, 1979, "the name" on January 12, 1979, in the name of L organization, "M" on March 9, 1979, "N organization branch offices" on January 15, 1978, "the last professor of the appellate court" on March 15, 197, "the name of K organization" on the list of the members of the family in Daegu prison, and distributed them to Q Qu 197 et al.

C. At around 12:30 on March 27, 1979, R, S, U,V, W, X, and Y, among which R, S, U, X, and Y are gathered, describe the root of the Z and the purport of the Telecommunication, and S publicly disseminates the Korean Constitution against the Republic of Korea’s Constitution and slandering the Presidential Emergency Decree No. 9 by denying the Republic of Korea’s Constitution and reading it.

2. Case progress

(a) Declaration and final judgment of conviction of the defendant;

On September 3, 1979, the Gwangju District Court rendered a guilty verdict on all charges by applying the Presidential Emergency Decree No. 9, and sentenced two years of imprisonment, three years of suspended execution, and two years of suspension of qualification (hereinafter referred to as "the judgment on review") to the defendant, and the judgment subject to review was finalized on September 11, 1979.

B. Details of Presidential Emergency Measure No. 9

In the judgment subject to a retrial, Article 53 of the former Constitution of the Republic of Korea (wholly amended by Act No. 9 of October 27, 1980, hereinafter referred to as the "former Constitution") applied the Presidential Emergency Decree for the protection of national security and public order (amended by Presidential Emergency Decree No. 9 of May 13, 1975, and released by Presidential Notice No. 67 of December 7, 1979; hereinafter referred to as the "Emergency Decree No. 9") to each of the above facts charged, and the specific contents are as follows.

1.The following acts shall be prohibited: (a) Favouring, spreading, or disseminating facts distorted; (b) by means of public radio waves, such as assemblies, demonstrations, newspapers, newspapers, broadcasting and telecommunications, drawings, videos, etc., the Constitution of the Republic of Korea is unjustifiable, distorted, or slandered, or the modification, petition, or publicity thereof; (c) openly slandering this measure; or (d) openly disseminating, by means of broadcast, news, or other means; or producing, distributing, selling, possessing, or displaying, the contents thereof; (g) a person who violates this measure or the measures taken by the competent Minister pursuant thereto shall be punished by imprisonment for a limited term of not less than ten years. In such cases, suspension of qualifications shall be concurrently imposed; and (d) a person who has committed such an attempted act or prepared or conspired to commit such act shall also be punished by imprisonment for a limited term of not less than ten years.

3. Determination

A. unconstitutionality of Emergency Measure No. 9

1) In the event of a serious crisis that is unable to be dealt with by the method of exercising power in accordance with the constitutional order at ordinary times, the Presidential decision on the national emergency power which is exercised to ensure the existence of the nation should be respected. However, the national emergency power should be exercised within the minimum limit that is essential to remove the direct cause of the crisis when the state is faced with a serious crisis, and must comply with the requirements and limits for exercising the constitutional power that provides for the national emergency power, and in this respect, the emergency power provided for in Article 53 of the new Constitution shall not be an exception. The new Constitution is limited to the emergency power to overcome the crisis when there is "natural, natural or significant financial or economic crisis, or when there is a serious threat or threat of national security or public peace and order."

2) However, the contents of the Emergency Decree No. 9 issued based on this are as follows: "act of openly spreading facts by means of broadcast, news, or other means; "act of denying, opposing, duplicating, or disturbing the Constitution of the Republic of Korea by means of public utility means, such as assemblies, demonstrations, newspapers, broadcasting, drawings, music records, etc.; "act of asserting, petitioning, instigating, or publicizing the amendment or abolition thereof;" "act of openly harming the student's assembly, demonstration or political participation, or other measures other than formal and political activities (each subparagraph of paragraph (1)); and "an act of openly harming such measures" shall be ordered by the competent Minister as well as an act of openly spreading contents of the same by means of broadcast or news; or an act of producing, distributing, selling, possessing, or displaying material contents thereof; a person who violates the above paragraph (2) shall be punished by imprisonment for a limited term of not less than 1 year; a person who violates the above paragraph (2) shall not be subject to any temporary or temporary measure of the competent Minister at the time of seizure or temporary emergency measures.

3) In addition, the contents of the Emergency Measure No. 9 are seriously restricting the freedom of expression or the right to petition guaranteed by the Constitution, which is an essential element of democracy, so that the State may guarantee to the maximum extent fundamental human rights of the people, notwithstanding the provisions of Article 8 (Article 10 of the current Constitution), Article 18 (Article 21 of the current Constitution), which restricts the freedom of expression as stipulated in Article 10 (Article 12 of the current Constitution) of the current Constitution by denying the principle of the rule of law by completely removing the warrant requirement, and not only restrict the freedom of residence as stipulated in Article 14 (Article 16 of the current Constitution) of the current Constitution, but also restrict the right to petition as stipulated in Article 23 (Article 26 of the current Constitution) of the current Constitution by explicitly denying the new Constitution or prohibiting the abolition thereof. Moreover, Article 23 (Article 26 of the current Constitution)9 of the current Constitution provides that all unauthorized assemblies or demonstrations of students and political activities, and Article 21 (Article 3) of the current Constitution provides that the current Constitution shall be restricted.

4) As such, Subparag. 9 of the Emergency Decree infringes on the fundamental rights of the people guaranteed by the Constitution by excessively restricting the freedom and rights of the people beyond the limits for the purpose without satisfying the requirements for triggering the Emergency Decree, prior to the cancellation or invalidation of Emergency Decree No. 9, it is unconstitutional and invalid due to its violation of the dynamic Constitution. Furthermore, in light of the current Constitution that provides for the guarantee of fundamental rights infringed by Emergency Decree No. 9, it shall be unconstitutional and invalid (see, e.g., Supreme Court en banc Order 2011Hu689, Apr. 18, 2013).

B. Measures to be taken by the court where the repealed or invalidated penal laws were unconstitutional or invalid from the beginning.

In a case where the penal law has retroactively lost its effect due to the Constitutional Court’s decision of unconstitutionality, or the court has declared that the punishment has been unconstitutional or invalid, the court shall, pursuant to Article 325 of the Criminal Procedure Act, render a not-guilty verdict for the accused case against which a public prosecution was instituted by applying the pertinent law. Furthermore, even if the penal law was repealed, if the “depristion” was concerning the law that was not effective since it was in violation of the Constitution from the beginning, the defendant’s case constitutes a cause of innocence, and it does not constitute a cause of acquittal under Article 326 subparag. 4 of the Criminal Procedure Act (see Supreme Court en banc Decision 2010Do5986, Dec. 16, 2010).

4. Conclusion

Thus, the facts charged of this case constitute unconstitutional or invalid since the Emergency Measure No. 9, which is the applicable law, was first unconstitutional or invalid, and thus, the defendant's case is not a crime, and thus, the defendant is acquitted pursuant to the former part of Article 325 of the

The presiding judge's position

Judges Cho Yong-hee

Judges Shin Young-ri

1) In the Constitutional Court Decision 2010HunBa70, 132, and 170 (Joint) Decided March 21, 2013, the Constitutional Court decided that Emergency Measure No. 9 was unconstitutional since it did not satisfy the legitimacy and appropriateness of the legislative purpose and its method, and it violated the principle of no punishment without the law, and that it is excessively limited or infringed on fundamental rights of the people, such as political rights, freedom of expression, freedom of assembly and demonstration, warrant requirement and physical freedom, and freedom of learning.